Citation Nr: 0721321
Decision Date: 07/17/07 Archive Date: 08/02/07
DOCKET NO. 04-22 893 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New York,
New York
THE ISSUE
Entitlement to a compensable rating for bilateral hearing
loss disability.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
E.B. Joyner, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1943 to August
1945. This matter comes before the Board of Veterans'
Appeals (Board) on appeal from a November 2002 rating
decision by the Department of Veterans Affairs (VA) Regional
Office (RO) in New York, New York.
The Board notes that the veteran was scheduled for a Travel
Board hearing in August 2006. The record reflects that in
June 2006, he submitted written requests to cancel the
hearing. Although in one correspondence he asks whether the
hearing could instead be held in Albany, New York, he then
followed with, "why must I appear? I have sent you
everything . . . ." In subsequently dated correspondence,
the veteran clearly indicates that he wishes to cancel his
hearing and not reschedule it. Therefore, his request for
such a hearing is considered withdrawn.
FINDING OF FACT
The veteran's bilateral hearing loss disability is manifested
by level II hearing loss in the right ear and level III
hearing loss in the left ear.
CONCLUSION OF LAW
The veteran's bilateral hearing loss disability is properly
evaluated as noncompensably disabling. 38 U.S.C.A. § 1155
(West 2002); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA), codified
in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002),
and the pertinent implementing regulation, codified at 38
C.F.R. § 3.159 (2006), provide that VA will assist a claimant
in obtaining evidence necessary to substantiate a claim but
is not required to provide assistance to a claimant if there
is no reasonable possibility that such assistance would aid
in substantiating the claim. They also require VA to notify
the claimant and the claimant's representative, if any, of
any information, and any medical or lay evidence, not
previously provided to the Secretary that is necessary to
substantiate the claim. As part of the notice, VA is to
specifically inform the claimant and the claimant's
representative, if any, of which portion, if any, of the
evidence is to be provided by the claimant and which part, if
any, VA will attempt to obtain on behalf of the claimant. In
addition, VA must also request that the claimant provide any
evidence in the claimant's possession that pertains to the
claim.
The Board also notes that the United States Court of Appeals
for Veterans Claims (Court) has held that the plain language
of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to
a claimant pursuant to the VCAA be provided "at the time"
that, or "immediately after," VA receives a complete or
substantially complete application for VA-administered
benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119
(2004). The Court further held that VA failed to demonstrate
that, "lack of such a pre-AOJ-decision notice was not
prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as
amended by the Veterans Benefits Act of 2002, Pub. L. No.
107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n
making the determinations under [section 7261(a)], the Court
shall . . . take due account of the rule of prejudicial
error")."
The timing requirement enunciated in Pelegrini applies
equally to the initial-disability-rating and effective-date
elements of a service-connection claim. Dingess v.
Nicholson, 19 Vet. App. 473 (2006).
The record reflects that the originating agency provided the
appellant with notice required under the VCAA, by a letter
dated in October 2002. Although VA did not specifically
inform the appellant that he should submit any pertinent
evidence in his possession, it did inform him of the evidence
that would be pertinent and that he should either submit such
evidence or provide VA with the information necessary for VA
to obtain such evidence. Therefore, the Board believes that
he was on notice of the fact that he should submit any
pertinent evidence in his possession. He was given ample
opportunity to respond and submit evidence.
Although the appellant has not been provided notice of the
type of evidence necessary to establish a disability rating
or effective date for the disability for which service
connection is sought, the Board finds that there is no
prejudice to the appellant in proceeding with the issuance of
a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394
(1993). As explained below, the Board has determined that
service connection is not warranted for the claimed
disability. Consequently, no disability rating or effective
date will be assigned, so the failure to provide notice with
respect to those elements of the claim was no more than
harmless error.
The record also reflects that all pertinent available service
medical records and all available post-service medical
evidence identified by the appellant have been obtained. In
addition, the veteran was afforded appropriate VA
examinations. The veteran has not identified any outstanding
evidence that could be obtained to substantiate the claim.
The Board is also unaware of any such outstanding evidence.
Therefore, the Board is also satisfied that VA has complied
with the duty to assist provisions of the VCAA and the
pertinent implementing regulation.
Following the completion of all indicated development of the
record, the originating agency readjudicated the claim in
June 2004. There is no indication or reason to believe that
the ultimate decision of the originating agency on the claim
would have been different had complete VCAA notice been
provided at an earlier time.
In sum, the Board is satisfied that any procedural errors in
the development and consideration of the claim by the
originating agency were insignificant and non-prejudicial to
the appellant.
Accordingly, the Board will address the merits of the claim.
Factual Background
An October 2002 VA audiology exam report notes that pure tone
air conduction thresholds, in decibels, were as follows:
1000
2000
3000
4000
Average
Right
Ear
40
40
55
65
46
Left
Ear
40
55
50
75
55
Maryland CNC tests revealed speech recognition ability of 94
percent in the right ear and of 96 percent in the left ear.
A November 2003 VA audiology exam report notes that pure tone
air conduction thresholds, in decibels, were as follows:
1000
2000
3000
4000
Average
Right
Ear
35
40
65
75
54
Left
Ear
50
55
60
70
59
Maryland CNC tests revealed speech recognition ability of 84
percent in the right ear and of 84 percent in the left ear.
Legal Criteria
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities (Rating
Schedule), found in 38 C.F.R. Part 4 (2006). The Board
attempts to determine the extent to which the veteran's
service-connected disability adversely affects his ability to
function under the ordinary conditions of daily life, and the
assigned rating is based, as far as practicable, upon the
average impairment of earning capacity in civil occupations.
38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (2006).
Evaluations of hearing loss range from noncompensable to 100
percent, based upon organic impairment of hearing acuity as
measured by the results of controlled speech discrimination
tests, together with the average hearing threshold level as
measured by pure tone audiometry tests in the frequencies
1000, 2000, 3000, and 4000 cycles per second. 38 C.F.R. §
4.85(a) and (d) (2006).
To evaluate the degree of disability for service-connected
bilateral hearing loss, the rating schedule establishes
eleven (11) auditory acuity levels, designated from level I,
for essentially normal acuity, through level XI, for profound
deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2006). The
assignment of disability ratings for hearing impairment is
derived by a mechanical application of the rating schedule to
the numeric designations assigned after audiometric
evaluations are rendered. See Lendenmann v. Principi, 3 Vet.
App. 345, 349 (1992).
When the pure tone thresholds at the four specified
frequencies (1000, 2000, 3000, and 4000 hertz) are 55
decibels or more, or when the pure tone thresholds are 30
decibels or less at 1000 Hz and 70 decibels or more at 2000
Hz, the rating specialist will determine the Roman numeral
designation for hearing impairment from either Table VI or
Table VIa, whichever results in the higher numeral. That
numeral will then be elevated to the next highest Roman
numeral. 38 C.F.R. § 4.86. The Board notes that the
veteran's hearing loss disability does not comport with
either of these exceptional patterns of hearing impairment.
Examinations are conducted using the controlled speech
discrimination tests, together with the results of the
puretone audiometry test. The horizontal lines in table VI,
referenced in 38 C.F.R. § 4.85, represent nine categories of
percent of discrimination based upon the controlled speech
discrimination test. The vertical columns in table VI
represent nine categories of decibel loss based upon the
puretone audiometry test. The numeric designation of
impaired efficiency (I through XI) will be determined for
each ear by intersecting the horizontal row appropriate for
the percentage of discrimination and the vertical column
appropriate to puretone decibel loss; thus, for example, with
a percent of discrimination of 70 and average puretone
decibel loss of 64, the numeric designation is V for one ear.
The same procedure will be followed for the other ear. The
numeric designations are then applied to table VII, also
referenced in 38 C.F.R. § 4.85, to determine the veteran's
disability rating.
Analysis
In considering the veteran's claim of entitlement to a
compensable rating for bilateral hearing loss disability, the
Board notes that the findings on the November 2003
audiometric evaluation are indicative of level II hearing
impairment in the right ear and level III hearing impairment
in the left ear. A noncompensable evaluation is warranted
when those values are applied to Table VII. 38 C.F.R.
§ 4.85, Diagnostic Code 6100 (2006). The findings on the
October 2002 VA audiometric evaluation are indicative of
level I hearing impairment in the right ear and level I
hearing impairment in the left ear. When applied to Table
VII, this combination also produces a noncompensable
evaluation. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2006).
Consequently, a compensable evaluation for the veteran's
bilateral hearing loss disability is not warranted under the
schedular criteria. In sum, the record demonstrates that the
schedular rating assigned by the RO is correct.
ORDER
Entitlement to a compensable rating for bilateral hearing
loss disability is denied.
____________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs